holding that to make out a claim for intentional infliction of emotional distress "[t]he plaintiff is required to establish that severe emotional distress was suffered, which must be supported by medical evidence, not the mere recitation of speculative claims"Summary of this case from Woods v. Sieger, Ross & Aguire, LLC
January 5, 1999.
Appeal from the Supreme Court, New York County (Louise Gruner Gans, J.).
The history of this litigation, involving several different proceedings, extends back to 1982. In January 1987, this Court held that the status of defendant Carl Johnes (defendant) as tenant of the apartment leased to his brother, Stephen Johnes, but never occupied by him, had been resolved in one of the actions, in which defendant sought a Yellowstone injunction ( 126 A.D.2d 417). The appeal now before us concerns the amount of rent due for the period from March 1986 to present, during which defendant continued to pay rent at the legal amount established for the year ending February 1986.
Supreme Court awarded plaintiff the maximum allowable rent increases for all years except 1990, 1992 and 1993, finding service of the requisite notice of maximum collectible rent insufficiently documented for these years. However, the record contains the master building rent schedule for 1992, which includes certification that service, was made on all tenants. Furthermore, plaintiff offered uncontroverted evidence of his practice of distributing the notices, and such evidence is admissible to demonstrate compliance on the occasions specified (Halloran v. Virginia Chems., 41 N.Y.2d 386, 391). Finally, defendant never affirmatively denied receipt of the notices. Therefore, we find that plaintiff is entitled to rent increases for all years for which rent arrears are sought.
While we discern no reason to disturb Supreme Court's abatement of rent, we find no merit to the remainder of defendant's counterclaims. Intentional infliction of emotional distress requires extreme and outrageous conduct, intended to cause, and resulting in, severe emotional distress (Howell v. New York Post Co., 81 N.Y.2d 115, 121). Commencement of litigation, even if alleged to be for the purpose of harassment and intimidation, is insufficient to support such a claim (see, Fischer v. Maloney, 43 N.Y.2d 553 [defamation action]; Artzt v. Greenburger, 161 A.D.2d 389 [nonprimary residence action]). The plaintiff is required to establish that severe emotional distress was suffered (Richard L. v. Armon, 144 A.D.2d 1), which must be supported by medical evidence, not the mere recitation of speculative claims (Leone v. Lee wood Serv. Sta., 212 A.D.2d 669, 672, lv denied 86 N.Y.2d 709). Examined in the context of often-contentious landlord-tenant proceedings, plaintiff's conduct falls far short of conduct "`"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community"'" (Howell v. New York Post Co., 81 N.Y.2d, supra, at 122).
To sustain a cause of action for abuse of process, the plaintiff must demonstrate "the deliberate premeditated infliction of economic injury without economic or social excuse or justification" (Board of Educ. v. Farmingdale Classroom Teachers' Assn., 38 N.Y.2d 397, 405). Commencement of an action, even with malicious intent, is insufficient (Curiano v. Suozzi, 63 N.Y.2d 113, 116-117; Family Media v. Printronic Corp., 140 A.D.2d 151, 152). In addition, the process employed must entail some "`unlawful interference with one's person or property'" (Curiano v. Suozzi, supra, at 116, quoting Williams v. Williams, 23 N.Y.2d 592, 596). We note that defendant's right to assume his brother's tenancy was hardly free from doubt, and this litigation therefore possessed a valid legal basis. Finally, no specific, quantifiable damages were demonstrated to be attributable to this or any other tort advanced as the basis of a counterclaim by defendant.
Similarly, with respect to the counterclaim for retaliatory eviction pursuant to Real Property Law § 223-b, we note that the various actions commenced by plaintiff each had a sound legal foundation. For example, in 1982, plaintiff commenced a holdover proceeding alleging violation of a lease provision prohibiting roommates. We note that this action preceded the enactment of the Omnibus Housing Act (L 1983, ch 403, § 39 [eff June 30, 1983 (L 1983, ch 403, § 64)]) construing any rental agreement to permit occupancy by "one additional occupant" (Real Property Law § 235-f), and it cannot be said that the proceeding was so completely devoid of merit as to be undeniably attributable to retaliatory motive.
In view of plaintiff's recovery of rent arrears and our dismissal of those counterclaims sounding in tort, the award of attorney's fees to defendant cannot stand. Real Property Law § 234 affords the tenant a reciprocal right to attorney's fees where the lease contains a provision entitling the landlord to their recovery. However, to support such an award, the judgment must be substantially favorable to the tenant (Lynch v. Leibman, 177 A.D.2d 453). In this Court's view, neither party can claim to have prevailed in this litigation, just as neither can claim to have been merely the hapless victim of the other's combative litigation style.
Concur — Nardelli, J.P., Rubin, Tom and Mazzarelli, JJ.